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Crawshaw v. California

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Jul 16, 2015
No. 2:13-CV-1349-CMK-P (E.D. Cal. Jul. 16, 2015)

Opinion

No. 2:13-CV-1349-CMK-P

07-16-2015

FRANK ARTHUR CRAWSHAW, JR., Petitioner, v. CALIFORNIA, Respondent.


ORDER

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is respondent's unopposed motion to dismiss (Doc. 23).

This action currently proceeds on the amended petition, filed on August 11, 2014. Petitioner asserts two claims based on insufficient evidence, as well as a claim for ineffective assistance of trial counsel. As respondent accurately notes, while petitioner has presented his claims of insufficient evidence to the California Supreme Court, petitioner never raised his ineffective assistance of counsel claim in state court. Respondent argues that the amended petition is, therefore, "mixed" and must be dismissed.

Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may be denied on the merits notwithstanding lack of exhaustion. See 28 U.S.C. § 2254(b)(2). "A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies." Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.

When faced with petitions containing both exhausted and unexhausted claim (mixed petitions), the Ninth Circuit held in Ford v. Hubbard that the district court is required to give two specific warnings to pro se petitioners: (1) the court could only consider a stay-and-abeyance motion if the petitioner chose to proceed with his exhausted claims and dismiss the unexhausted claims; and (2) federal claims could be time-barred upon return to federal court if he opted to dismiss the entire petition to exhaust unexhausted claims. See 330 F.3d 1086, 1099 (9th Cir. 2003). However, the Supreme Court held in Pliler v. Ford that the district court is not required to give these particular warnings. See 542 U.S. 225, 234 (2004). Furthermore, the district court is not required to sua sponte consider stay and abeyance in the absence of a request from the petitioner, see Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007), or to inform the petitioner that stay and abeyance may be available, see Brambles v. Duncan, 412 F.3d 1066, 1070-71 (9th Cir. 2005). Therefore, in the absence of a stay-and-abeyance motion, the district court should dismiss mixed petitions and need not provide any specific warnings before doing so. See Robbins, 481 F.3d at 1147 (citing Rose, 455 U.S. at 510 (holding that the petitioner has the "choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court")).

The Supreme Court did not address the propriety of Ninth Circuit's three-step stay-and-abeyance procedure which involves dismissal of unexhausted claims from the original petition, stay of the remaining claims pending exhaustion, and amendment of the original petition to add newly exhausted claims that then relate back to the original petition. See Pliler, 542 U.S. at 230-31 (citing Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986-88 (9th Cir. 1998)). --------

Because petitioner has not filed a stay-and-abeyance motion, or any response whatsoever to respondent's motion, the court agrees with respondent that the current amended petition must be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent's unopposed motion to dismiss (Doc. 23) is granted;

2. The amended petition is dismissed;

3. Petitioner shall file a second amended petition containing only exhausted claims within 30 days of the date of this order; and

4. If petitioner fails to comply, the entire action will be dismissed and the case will be closed. DATED: July 16, 2015

/s/_________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE


Summaries of

Crawshaw v. California

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Jul 16, 2015
No. 2:13-CV-1349-CMK-P (E.D. Cal. Jul. 16, 2015)
Case details for

Crawshaw v. California

Case Details

Full title:FRANK ARTHUR CRAWSHAW, JR., Petitioner, v. CALIFORNIA, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 16, 2015

Citations

No. 2:13-CV-1349-CMK-P (E.D. Cal. Jul. 16, 2015)